Bartlett v. Iowa State Ins. Co.

• Decision Date: 31 January 1889
• Citation: 41 N.W. 579,77 Iowa 86
• Parties: BARTLETT v. IOWA STATE INS. CO.
• Court: Iowa Supreme Court

77 Iowa 86

41 N.W. 579

BARTLETT

v.IOWA STATE INS. CO.

Supreme Court of Iowa.

Jan. 31, 1889.

Appeal from district court, Muscatine county; A. J. LEFFINGWELL, Judge.

Action upon a policy of insurance against loss by fire. There was a trial by the court without a jury, and a judgment for defendant for costs. Plaintiff appeals.E. F. Richman, for appellant.

J. Carskaddan and Craig, McCreary & Craig, for appellee.

ROTHROCK, J.

The policy of insurance upon which the suit is founded was issued to Martin Bartlett on the 11th day of February, 1884. The property insured was destroyed by fire on the 3d day of July, 1886, which was during the life of the policy. At the time the insurance was effected, Bartlett was indebted to the plaintiff, who is his wife, in the sum of about $12,000; and she held a mortgage upon the insured property, and upon other property, to secure the payment of the indebtedness. The policy contained this provision: “Loss, if any, payable to mortgagees as their interest may appear.” At the time of the fire, no part of the mortgage debt had been paid. On the 31st day of August, 1886, Martin Bartlett conveyed the lot upon which the burned building was situated to the plaintiff. The consideration named in the deed was the amount due on the mortgage. On the 19th day of July, 1887, the mortgage was satisfied of record.

There is no doubt that the plaintiff, as the mortgagee, had the right to maintain the action. There was no other mortgage upon the property, and she was the real party in interest. See Mershon v. Insurance Co., 34 Iowa, 87. Her relation to the policy as a mortgagee is averred in the petition; and while it is not therein stated, in express terms, that she sues as mortgagee, yet that may be inferred from what is stated.

But the defendant insists that plaintiff had no right to maintain the action, because there was no mortgage, it having been paid and satisfied; but the evidence shows that, when the mortgage was settled between the parties, plaintiff took the policy and the burned property for the debt. She was the real party in interest still, notwithstanding she had given up her mortgage. She did not give up the policy, in which she was always the real party in interest. It is to be observed that this transfer of the property occurred after the loss, and when the plaintiff's policy had become a matured obligation. The court adjudged that “the plaintiff could not have and maintain her said action.” From this we...